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Grasser v. Centerton Country Day School


August 14, 2008


On appeal from the Superior Court of New Jersey, Cumberland County, Law Division, Docket No. L-0552-05.

Per curiam.


Argued March 3, 2008

Before Judges Graves and Alvarez.

Defendant, Centerton County Day School, appeals from the denial of a motion for judgment notwithstanding a jury's verdict which awarded plaintiff, Barbara A. Grasser, damages totaling $19,800 pursuant to New Jersey's Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. Plaintiff was also awarded counsel fees of $13,146, costs in the amount of $1028.40, and pre-judgment interest of $1292.16. For the reasons that follow, we affirm.

The facts developed at trial require only brief summary. For approximately six years plaintiff was employed by defendant; for approximately the last two years of this time, she worked as the program director at the Upper Deerfield Preschool. Defendant is the entity which operates the preschool. On the morning of June 3, 2004, two students were discovered to have suspected infectious ringworm and were sent home. Believing all the children in the school had been exposed, and erroneously believing that the law required her to do so, plaintiff placed a written notice of the possibility of exposure in each child's mailbox to be taken home at the close of the day.

When Jean Scarani, the owner of the pre-school, returned, she removed the few notices which remained from the mailboxes. Scarani asked plaintiff "[w]ho gave [plaintiff] permission" to generate the notice, and then Scarani informed plaintiff that "she didn't want any negative news going out of the school." Plaintiff, upset by the comments, then left the school, and returned for the sole purpose of meeting with Scarani to discuss the incident. At that meeting, plaintiff testified she was "stripped" of all authority as director, and was basically relegated to doing paperwork in the office. Plaintiff subsequently gave Scarani two weeks notice, and Scarani forbid her from returning to the school while it was in operation. As a result, after the meeting, plaintiff never returned. The complaint seeking damages under CEPA followed.

At the close of plaintiff's case, defendant unsuccessfully moved for a directed verdict. After the jury returned its verdict awarding damages to plaintiff, defendant filed a notice of motion seeking judgment notwithstanding the verdict (n.o.v.) pursuant to Rule 4:40-2(b), and a new trial pursuant to Rule 4:49-1.

The Law Division judge said:

Regrettably, I'm going to deny the Motion for Judgment Notwithstanding the Verdict. I - - I disagree with the verdict, let me be candid about that. The verdict must shock the judicial conscience for me to overturn it. I can't simply substitute my judgment for that of the jury, because I would have reached the opposite conclusion -

- I would have reached the opposite - - if I was a juror, I would not have voted with them. I - - I don't believe that the - - I - - I don't believe that the requirement of the owner of the business to run everything by her, particularly when it was untested by any further time to see what that really meant, was such that if I were involved in the verdict, that I would have agreed with it. I don't agree with it. I just totally don't agree with the verdict. But, I - - it doesn't mean that I am convinced that there is a miscarriage of justice under the law, which is the heavy burden that I have to reach to set that verdict aside.

So, I am denying the motion for a new trial, and I'm being candid that I disagree with it, but I don't think I have the power to overturn it.

Defendant's sole argument on appeal is as follows:

Plaintiff's proofs, even when considered in their most favorable light, do not establish a cause of action under the Conscientious Employee Protection Act. Accordingly, the trial court erred in denying defendant's Motions seeking an involuntary dismissal and a Judgment notwithstanding the jury's verdict.

Undoubtedly, the judge articulated only his consideration of the Rule 4:49-1(a) motion for a new trial standard: "[a] new trial may be granted . . . if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." As he said, on a motion for a new trial, "[j]ury verdicts should be set aside in favor of new trials only with great reluctance, and only in cases of clear injustice." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). New trials should be granted only where "it clearly appears there was a miscarriage of justice." Ibid. We agree with his conclusion that the jury's verdict neither "shock[ed] the judicial conscience," nor constituted "a miscarriage of justice under the law."

This was not, however, simply a motion for a new trial. It was a motion for judgment n.o.v. Rule 4:40-1 provides that either party may make "[a] motion for judgment . . . at the close of all the evidence or at the close of the evidence offered by an opponent." With regard to a motion for judgment n.o.v., Rule 4:40-2 provides, in pertinent part, as follows:

If a motion for judgment is denied and the case submitted to the jury, the motion may be renewed in accordance with the procedure prescribed by [Rule] 4:49-1 (new trial) within twenty days after the verdict or the jury's discharge. A motion so renewed may include in the alternative a motion for a new trial, and every motion made by a party for a new trial shall be deemed to include, in the alternative, a renewal of any motion for judgment made by that party at the close of the evidence.

"Under [Rule] 4:40-2, a judgment n.o.v. cannot be entered unless a motion for judgment or its equivalent has been made during trial." Velazquez v. Jiminez, 336 N.J. Super. 10, 33 (App. Div. 2000), aff'd, 172 N.J. 240 (2002). "The test for a motion under [Rule] 4:40-2 (judgment notwithstanding the verdict) is the same as that governing motions under [Rule] 4:37-2(b) (involuntary dismissal at the end of the plaintiff's case), and [Rule] 4:40-1 (judgment after the close of evidence)." Malin v. Union Carbide Corp., 219 N.J. Super. 428, 435-36 (App. Div.), certif. denied, 107 N.J. 638 (1987). See also Pressler, Current N.J. Court Rules, comment 1 on R. 4:40-2 (2008). "Neither the trial judge nor the appellate court is concerned with the weight, worth, nature or extent of evidence, but must accept as true all the evidence supporting the party opposing the motion, and accord him the benefit of all favorable inferences." Polyard v. Terry, 160 N.J. Super. 497, 505-06 (App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979). "[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ the motion must be denied." Dolson v. Anastasia, 55 N.J. 2, 5 (1969).

Implicit in the judge's findings was his conclusion that although he would not have voted for the jury's verdict, it was not unreasonable. We note that plaintiff testified that she was "stripped" of all authority by Scarani, would be a program director in title only, and relegated to no more than paperwork. Viewing the testimony in the favorable light required by the rule, reasonable minds could indeed differ as to whether the restrictions constituted retaliatory action by plaintiff's employer as defined under CEPA. Accordingly, because reasonable minds could differ, the judge's decision to deny the motion for judgment n.o.v. stands.



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